Attorney General for the State of New South Wales v Tosson Mahmoud [2015] NSWSC 153

Supreme Court New South Wales

Medium Neutral Citation: Attorney General for the State of New South Wales v Tosson Mahmoud [2015] NSWSC 153 Hearing dates: 4 March 2015 Date of orders: 04 March 2015 Decision date: 04 March 2015 Jurisdiction: Common Law Before: Wilson J Decision: Application to vacate the hearing date of 9 March 2015 is refused; costs to be borne by defendant Catchwords: PROCEDURE – civil – application to vacate hearing for Vexatious Proceedings – scandalous material - serious allegations against a judicial officer of this Court – voluminous material from defendant – application refused Legislation Cited: Vexatious Proceedings Act 2008 Category: Procedural and other rulings Parties: Attorney General for the State of New South Wales (Plaintiff/Respondent)

Tosson Mahmoud (Defendant/Applicant) Representation: Counsel: Mr J Emmett (Plaintiff/Respondent) Defendant/Applicant in person File Number(s): 2013/00266710 Publication restriction: None

EX TEMPORE Judgment 1. Pursuant to an order of this court on 9 October 2014 giving the parties in these proceedings liberty to restore the matter to the list at two days' notice, the defendant, Tosson Mahmoud, has sought to place the matter in the Court's list for today. He moves on a motion in which he seeks an order vacating the hearing date set for the substantive proceedings, the substantive proceedings being listed for hearing on 9 March 2015 with an estimate of two days. 2. The substantive proceedings were commenced in this Court as long ago as 3 September 2013 and are brought by the Attorney General for the State of New South Wales against Mr Mahmoud. 3. What is sought in those proceedings is an order pursuant to the Vexatious Proceedings Act 2008 declaring Mr Mahmoud to be a vexatious litigant. 4. Since the originating process was filed the matter has come before the Court on numerous occasions and it now has a lengthy and, it must be said, somewhat unfortunate, history. There are already three substantial judgments of this court in which various applications were heard and ruled upon, all being applications from Mr Mahmoud. 5. On 1 April 2014 her Honour Fullerton J, sitting as the duty judge, heard and determined an application for a temporary stay of proceedings from Mr Mahmoud. That application, which Mr. Mahmoud denies having made, was refused. 6. On 24 July 2014 his Honour Hoeben CJ at Common Law handed down a decision, having heard proceedings some six or so days earlier that had been brought before the Court by Mr Mahmoud. In that particular matter Mr Mahmoud sought to have the Attorney's motion dismissed; he sought to challenge the retainer of the Crown Solicitor and, indeed, the status of the Attorney-General to bring the proceedings; and he sought a stay on the basis of his purported ill-health. 7. Having heard extensive submissions from Mr Mahmoud and considered the evidence, the Chief Judge at Common Law dismissed the defendant's motion and ordered costs against Mr Mahmoud in favour of the Attorney-General. 8. The matter was again before the Court on 24 September 2014, on that occasion coming before her Honour, Schmidt J. Her Honour heard a number of applications from Mr Mahmoud and having considered his submissions and the evidence, made a number of determinations. DEFENDANT: She has not considered anything. She told me lies, I know you are going to stop me. HER HONOUR: Mr Mahmoud, sit down or I will have you removed. DEFENDANT: This is not a court, it is a criminal organisation. She considered nothing, she is a liar, yes, she is a liar. HER HONOUR: I am going to order a transcript of today's proceedings to see whether you should be charged with contempt of this Court. Do you wish to say anything about that before you leave? I am going to proceed. Before you leave, Mr Mahmoud, I want to make it clear, I am dismissing your application and that means your case will proceed on 9 March. The Court will expect you to be here. I note for the record that Mr Mahmoud has left the bar table, and is now throwing his papers into a box. He appears to be packing his things and is about to leave the Court. I will continue the judgment. DEFENDANT: Mail it to me, send by e-mail. HER HONOUR: Her Honour, Schmidt J, having heard extensive evidence, and it appears from the transcript, on occasions, what might be considered quite offensive submissions from the defendant, refused his various motions. HER HONOUR: I will just note for the record that Mr Mahmoud, laughing quite hysterically, has just left the Court room. 1. Much of the material placed before her Honour by Mr. Mahmoud was in the nature of scandalous allegations, entirely unsupported by evidence, and the same can be said for the material before the Court today. 2. Mr Mahmoud caused these matters to be placed in today's list by sending a letter via e-mail to the Registrar of this Court which attached voluminous documentation, all of it unpaginated. Although I have not counted the documents annexed to his application to re-list the matter, there is a significant volume of material in support of his request, which was headed, "Very Urgent, To Relist The Case Before The Court". 3. In the material that he filed via e-mail, Mr. Mahmoud made very serious allegations against a judicial officer of this Court. He made serious allegations against a number of other people, and somewhat sweeping statements against individuals based upon their race or gender or both. 4. In particular he seems to claim in that material that he had been given a promise from the Prime Minister of the nation that, in exchange for his intervention and assistance in securing the release of a journalist who was until recently held in custody in Egypt, the Attorney-General's proceedings against him in this Court would be withdrawn. He appeared, in his request to have the matter relisted, to assert a type of estoppel, if it could be interpreted in such a way. That is, he asserted that he spent time and effort securing the release of Peter Greste from an Egyptian gaol, having been promised in exchange the withdrawal of the proceedings outstanding against him in New South Wales, and was then disappointed to find that the promise made to him by the Prime Minister had not been kept. 5. In the Notice of Motion, which he was granted leave to file in court this morning, the only relief sought by Mr Mahmoud was one order, that being that the hearing date of 9 March 2015 be vacated. 6. Mr. Mahmoud swore an affidavit in support of his Notice of Motion dated 3 March 2015 and I have read his affidavit and its annexures. The annexures run through A to K inclusive, and represent a substantial amount of material. 7. Much of what is in Mr Mahmoud's affidavit could in no sense be regarded as evidence. It is allegation, submission, assertion, but not evidence. The annexed material includes material that appears to evidence attempts by him to obtain documentation from the Department of Justice concerning his case. It includes something called a requisition for trial by jury, the results of searches on a social net-working website, copies of correspondence to both the Australian Prime Minister and the Egyptian Prime Minister relating to the release of Mr. Greste, the Australian journalist, from an Egyptian prison. There are extracts from legal texts, copies of judgments from this Court and perhaps of most significance to his current application, a copy of material which appears to evidence the filing by Mr Mahmoud of a complaint to the Judicial Commission against her Honour, Schmidt J of this Court, in relation to the orders made on 9 October 2014. 8. The material relating to the complaint to the Judicial Commission is contained substantially in Exhibit K and much of that material, certainly pages 1 to 20 of Exhibit K, I would regard as scandalous matter which is not properly before the Court and which the Court would be entitled to simply strike out of the document. It is what can readily be regarded as offensive abuse of a justice of this Court, and it includes allegations of a gravely serious nature for which there is no substantiation whatsoever provided. Indeed, the Court's record of proceedings relevant to the judgment of 9 October 2014 contradicts it. 9. Whilst pages 1 through 20 of annexure K to the affidavit of Mr Mahmoud of 3 March 2015 will be retained in the Court's file, I propose as a matter of formality to strike it from the document pursuant to rule 4.15(1)(a) of the Uniform Civil Procedure Rules 2005. 10. What Mr Mahmoud appeared to argue in submission, and seemed to be shouting just prior to his departure from the courtroom, was to the effect that her Honour Schmidt J being, on his allegation, corrupt, could not make any enforceable order relating to him. Further, that he having lodged a complaint against her Honour to the Judicial Commission, her Honour's orders must be regarded as having been set aside. 11. Those submissions are entirely misconceived and misunderstand the way that the legal process works. 12. Any citizen who is disobliged by what is alleged to be some impropriety by a judge of a court is entitled to lodge a complaint against that judicial officer with the Judicial Commission. That is part of our community's system of open justice, where no individual is above the operation of the law, and the legal system itself is at all times open to intense scrutiny. Such scrutiny can be by way of appellate review or through seeking the intervention of a statutory body such as the Judicial Commission. 13. The fact that a citizen has lodged such a complaint however, does not equate to any adverse findings having been made against that particular judicial officer, and it can have no effect whatsoever on the orders made by the Court. 14. Her Honour's orders listing the Attorney's application for hearing on 9 March 2015, with the timetable specified for evidence and submissions, were intended to bring this matter to finality. That is in circumstances where the proceedings will soon have a second anniversary of being before the Court. 15. Finalisation of the proceedings is in the interests of all parties, bearing in mind the requirements of s 56 of the Civil Procedure Act 2005, which places emphasis on the speedy resolution of proceedings. 16. In listing the matter for hearing on 9 March 2015, her Honour allowed the parties some five months to ready their respective cases. That lengthy period between the mention of the matter on 9 October 2015 and the date fixed for hearing was no doubt intended, at least in part, to assist Mr. Mahmoud, as an unrepresented litigant, by giving him a longer than usual period to avail himself of in the preparation of his case to meet the Attorney's application against him. 17. Whilst Mr Mahmoud in his submissions characterised a five-month period between mention and hearing date as "a rush", the time between mention and hearing is by no means unduly short. Indeed, it could be regarded as relatively lengthy. 18. Mr Mahmoud says before this Court, as I understand his argument, that he, having been distracted by his endeavours to secure Mr. Greste's release, took time out from the onerous work of preparing his defence. He did so on the understanding that the proceedings against him in this Court would not continue. His submission appeared to be that he had, as a consequence, been disadvantaged in preparing his case, and now had insufficient time in which to do so. 19. Five months is a very lengthy period in which to prepare a case. It is a more than generous allowance in my opinion and I do not accept that, whatever other activities Mr Mahmoud may have occupied himself with, whether endeavouring to secure Mr. Greste's release or not, he has had five months to prepare his case in readiness for 9 March 2015. 20. The Court has an obligation to ensure that matters proceed expeditiously and without undue delay. There has already been substantial delay in this matter. Indeed, the number of occasions on which Mr Mahmoud has sought to postpone the hearing of the matter to date, is such that a reasonable observer might well conclude that there has been a deliberate attempt to obfuscate the Court's process. 21. Be that as it may, Mr. Mahmoud's application to vacate the hearing date is entirely without substance. In my view, there is nothing in the voluminous material which he has placed before the Court which could in any way justify a vacation of the hearing date of 9 March 2015, and the consequential loss, not just to the parties - and they would not be insignificant to the Attorney General and perhaps even to Mr. Mahmoud - but also to the Court and to other litigants who are waiting to obtain a hearing date from the Court for their matters. It seems to me that there is an overwhelming community interest in bringing these long-running proceedings to finality, so that the originating process filed on 3 September 2013 can be finally adjudicated by this Court. 22. I am conscious of those matters which have been raised by Mr Mahmoud and, having seen his conduct in the courtroom, I have no doubt that he firmly believes those things that he asserts, but there is no evidence to support his many and scandalous allegations. There is nothing that would warrant their acceptance. 23. There is no reason to conclude that Mr. Mahmoud will be in any way prejudiced by the matter proceeding on the next date, beyond the ordinary prejudice that flows to any defendant in a matter being brought against them, of the risk that an adverse finding. 24. Accordingly, the motion is dismissed, the application to vacate the hearing date of 9 March 2015 is refused. 25. I make an order for the costs of these proceedings to be borne by the defendant payable in favour of the Attorney-General. 26. I direct the Registry of this Court to send a copy of the Court's orders of today to Mr. Mahmoud by registered post to his address, and via e-mail if an address is known.